BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       SB 1295|
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                                   THIRD READING 


          Bill No:  SB 1295
          Author:   Nielsen (R) 
          Amended:  4/26/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/19/16
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 5/27/16
           AYES:  Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
           
           SUBJECT:   Mentally ill prisoners


          SOURCE:   California District Attorneys Association



          DIGEST:  This bill allows documentary and other specified  
          hearsay evidence to prove that an alleged mentally disordered  
          offender's (MDO) crime of commitment to prison qualified as a  
          violent crime under the MDO law.


          ANALYSIS:  


          Existing law:


          1) States a legislative finding and declaration that the  
             Department of Corrections and Rehabilitation (CDCR) should  
             evaluate each prisoner for severe mental disorders during the  








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             first year of the prisoner's sentence, and that severely  
             mentally disordered prisoners should be provided with an  
             appropriate level of mental health treatment while in prison  
             and when returned to the community.  (Pen. Code § 2960.)


          2) Requires, as a condition of parole, a prisoner who meets the  
             following criteria be treated by the State Department of  
             State Hospitals (DSH):


             a)    The prisoner has a severe mental disorder, as defined,  
                that is not in remission, as defined, or cannot be kept in  
                remission without treatment; 


             b)    The severe mental disorder was one of the causes of or  
                was an aggravating factor in the commission of a crime, as  
                specified, for which the prisoner was sentenced to prison;  



             c)    The prisoner has been in treatment for the severe  
                mental disorder for 90 days or more within the year prior  
                to the prisoner's parole or release; and, 


             d)    Prior to release on parole, the person in charge of  
                treating the prisoner  and a practicing psychiatrist or  
                psychologist from the DSH or a chief psychiatrist of CDCR,  
                as applicable, have evaluated the prisoner at a CDCR  
                facility or state hospital, as applicable, and a chief  
                psychiatrist of CDCR has certified to the Board of Parole  
                Hearings (BPH) that the prisoner meets the above criteria  
                and that by reason of his or her severe mental disorder  
                the prisoner represents a substantial danger of physical  
                harm to others.  (Pen. Code § 2962.) 


          3) Requires BPH to order a further examination by two  
             independent professionals, as specified, if the professionals  
             doing the evaluation above do not concur that the inmate  
             meets the criteria for MDO commitment.  The certification by  
             a chief psychiatrist to BPH that the inmate is an MDO shall  







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             stand if at least one of the independent professionals who  
             evaluate the prisoner concurs with the chief psychiatrist's  
             certification.  (Pen. Code § 2962, subds. (d)(2)- (3).) 


          4) Allows BPH, upon a showing of good cause, to order an inmate  
             to remain in custody for up to 45 days past the scheduled  
             release date for a full MDO evaluation.  (Pen. Code § 2963.) 


          5) Allows the prisoner to challenge the MDO determination both  
             administratively (at a hearing before the board) and  
             judicially (via a superior court jury trial).  (Pen. Code §  
             2966.) 


          6) Provides that if the MDO determination made by BPH is  
             reversed by a judge or jury, the court shall stay the  
             execution of the decision for five working days to allow for  
             an orderly release of the person.  (Pen. Code § 2966.) 


          7) Requires MDO treatment to be inpatient treatment unless there  
             is reasonable cause to believe that the parolee can be safely  
             and effectively treated on an outpatient basis.  Existing law  
             allows a parolee to request a hearing to determine whether  
             outpatient treatment is appropriate if the hospital does not  
             place the parolee on outpatient treatment within 60 days of  
             receiving custody of the parolee.  (Pen. Code § 2964, subds.  
             (a)-(b).) 


          8) Provides that a person involuntarily confined for treatment  
             of mental illness as an MDO can be involuntarily treated with  
             antipsychotic medication in a non-emergency situation where  
             the MDO is determined by a court to be either a) incompetent  
             to refuse medication (unable to make rational medical  
             decisions); or b) a danger to others within the meaning of  
             Welfare and Institutions Code section 5300 (the LPS section  
             for 180 day commitments of dangerous persons).  (In re Qawi,  
             supra, (2004) 32 Cal.4th 1, 27-28.)


          9) Requires the director of the hospital to notify BPH and  







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             discontinue treatment if the parolee's severe mental disorder  
             is put into remission during the parole period and can be  
             kept that way.  (Pen. Code § 2968.) 


          10)      Allows the district attorney to file a petition in the  
             superior court seeking a one-year extension of the MDO  
             commitment, subject to the same procedural and substantive  
             rules of the original commitment trial.  (Pen. Code § 2970.) 


          11)      Provides that proof of qualifying nature of an alleged  
             sexually violent predator's qualifying prior convictions may  
             be established by documentary evidence:  "The details  
             underlying the commission of an offense that led to a prior  
             conviction, including a predatory relationship with the  
             victim, may be shown by documentary evidence, including, but  
             not limited to, preliminary hearing transcripts, trial  
             transcripts, probation and sentencing reports, and  
             evaluations by [DSH]."  (Welf. & Inst. Code § 6600, subd.  
             (a)(3).)


          This bill:


          1) Allows evidence of the qualifying violent nature of an  
             alleged MDO's crime of commitment to prison to include  
             documentary.


          2) Provides that documentary evidence to establish the  
             qualifying violent nature of the inmate's offense or offenses  
             includes, but is not limited to, preliminary hearing and  
             trial transcripts, probation and sentencing reports and DSH  
             evaluations.


          Background




          According to the author:







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               SB 1295 would relieve crime victims from being  
               required to give traumatic testimony during a parole  
               hearing of their mentally disordered attacker.  The  
               bill would amend the Mentally Disordered Offender  
               (MDO) Act to allow mental health experts to provide  
               testimony based on probation reports, trial  
               transcripts, and other documentary evidence.  Under a  
               1994 court ruling, an offender's violent acts could be  
               proved through the testimony of a psychologist or  
               psychiatrist relying on probation reports, DSH  
               evaluations and trial transcripts, without the  
               victim's testimony.

               A 2015 California Supreme Court decision held that  
               hearsay testimony from an expert based on documentary  
               evidence could not be used to prove the force,  
               violence, or threat of an MDO's prior crime. The  
               prosecution must now make a victim testify or hold a  
               hearing without full evidence.  The court noted that  
               the Legislature is free to create exceptions to the  
               rules of evidence as it has done in the SVP (Sexually  
               Violent Predator) context.  SB 1295 is that solution. 


          An MDO commitment is a post-prison civil commitment designed to  
          confine as mentally ill a parolee when it is found that he or  
          she has a mental illness which contributed to the commission of  
          a violent crime and predisposes the parolee to further violence.  
           CDCR paroles an MDO to treatment in the state hospital  
          throughout parole.  The MDO law actually addresses treatment in  
          three contexts - first, as a condition of parole (Pen. Code, §  
          2962); then, as continued treatment for one year upon  
          termination of parole (Pen. Code § 2970); and, finally, as an  
          additional year of treatment after expiration of the original,  
          or previous, one-year commitment (Pen. Code § 2972).  (People v.  
          Cobb (2010) 48 Cal.4th 243, 251.)  


          Penal Code Section 2962 lists six criteria that must be proven  
          for an initial MDO certification, namely, whether: (1) the  
          inmate has a severe mental disorder; (2) the inmate used force  
          or violence in committing the underlying offense; (3) the mental  







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          disorder was one of the causes or an aggravating factor of the  
          offense; (4) the disorder is not in remission; (5) the inmate  
          was treated for the disorder for at least 90 days in the year  
          before release; and (6) by reason of the severe mental disorder,  
          the inmate poses a serious threat of physical harm to others.  
          (Pen. Code § 2962, subds. (a)-(d); People v. Cobb, supra, 48  
          Cal.4th at p. 251-252.)


          The determination whether the inmate committed a qualifying  
          violent crime is essentially a formality if he or she was  
          convicted of an offense specified in the governing statute.   
          These include voluntary manslaughter, robbery in which the  
          inmate personally used a weapon, forced or coerced sex crimes  
          and others.  (Pen. Code § 2962, subd. (e)(2)(A)-(O).)  Proof of  
          the violent nature of a crime is less clear if it is based on  
          the defendant's conduct in any felony "in which the prisoner  
          used force or violence, or caused serious bodily injury? or made  
          a credible threat to cause "substantial physical harm?."  (Id.,  
          at subparagraphs (P)-(Q).)


          Proof of an inmate defendant's violent conduct has been done  
          through live testimony by the victim or witnesses, or through  
          hearsay from the state's mental health expert.  Presenting live  
          testimony risks traumatizing the victims.  Hearsay - a statement  
          made out of court to prove a fact in a hearing - is a less  
          reliable form of evidence and is generally inadmissible without  
          an exception to the hearsay rule. 


          The Court of Appeal produced conflicting opinions as to whether  
          the state could validly use hearsay evidence to prove the facts  
          of an inmate's violent offense.  The California Supreme Court  
          resolved the conflict by finding that hearsay is not admissible  
          to prove the facts of the conviction.  (People v. Stevens (2015)  
          64 Cal.4th 325.)  The Supreme Court agreed that a psychologist  
          or psychiatrist may properly use hearsay within the area of his  
          or her expertise - the alleged MDO's  mental disorder as a  
          factor in the crime.  "But proof of a qualifying conviction  
          under the MDO Act is based on facts rather than on defendant's  
          psychological condition, and thus does not call for a mental  
          health expert's opinion testimony." (Stevens, at p. 336)  The  
          court noted that the Legislature had authorized an expert in an  







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          MDO case to rely on certified records to establish the  
          requirement that the inmate received 90 days of treatment in the  
          prior year and could do the same in MDO matters. (Id., at p.  
          338.)


          The purpose of this bill to create the hearsay exception to  
          which the Stevens court referred.  It appears that the  
          Legislature is free to enact the hearsay exception in this bill  
          because an MDO proceeding is civil in nature.  In a criminal  
          case there is developing consensus that the Fifth Amendment bars  
          admission of hearsay presented by an expert to prove specific  
          facts that constitute the basis of the expert's opinion.  


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          According to the Senate Appropriations Committee:


 MDO population:  Likely minor impact on the number of MDOs determined to  
            require treatment as a result of the admissibility of  
            documentary evidence to prove the facts of an inmate's  
            allegedly violent commitment offense. However, the impact of  
            even one additional parolee determined to require DSH  
            treatment is estimated to cost over $200,000 (General Fund)  
            annually.

 MDO hearings:  Potential future trial court cost savings (General Fund*) to  
            the extent the admissibility of documentary evidence reduces  
            the amount of time spent in trial, including the number and  
            complexity of appeals to decide evidentiary issues. 

 BPH:  Minor, if any, impact (General Fund) to the BPH and its existing MDO  
            process.


          * Trial Court Trust Fund


          SUPPORT:   (Verified5/27/16)








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          California District Attorneys Association (source)
          Crime Victims United of California


          OPPOSITION:   (Verified5/27/16)


          None received


          Prepared by:Jerome McGuire / PUB. S. / 
          5/28/16 16:46:05


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